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Child custody cases can be some of the most emotionally charged battles a person can experience in the course of their life. But these days, the fight for custody has been extending beyond children—what about precious household pets? Recently the New York State Senate passed Bill S4248. This bill, if signed by the Governor, will change how the Courts interpret animal custody for parties in divorce proceedings. So, what are your rights when the battle shifts to custody of Kitty and Fido?
Previously, the courts have not had much discretion to address animal custody rights. Judges and Officers of the Court, some of whom may never have owned an animal or pet in their life, were forced to deal with an issue that to many may seem trivial but to true pet lovers, one of, if not the most important, thing in their life. In the past, Courts chose to adopt the property law approach of “Whoever purchased the animal owned the animal.” In other words, animals were “chattel” or mere property where title to ownership would control and only the fair value of the animal, as property, could be divided—which in many cases was neither fair nor equitable.
This growing issue was first addressed at length in the 2013 New York State Supreme Court decision, Travis v. Murray. The Court stated, “there has been a slow but steady move in New York case law away from looking at dogs and other household pets in what may be seen as an overly reductionist and utilitarian manner.” [i]
This logic followed the precedent in Corso v. Crawford (1979), which was one of the original New York State cases to address an animal having more value than “market value,” which as many pet owners know, is a far cry from the real value one gives their pets. In Corso, “a veterinarian who wrongfully disposed of the remains of the plaintiff’s poodle and then attempted to conceal the fact by putting the body of a dead cat in the dog’s casket. Finding that the distressed and anguished plaintiff was entitled to recover damages beyond the market value of the dog, the court held that ‘a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.’” [ii].
New York, although not archaic in its views on animal custody rights, has been far from the forefront when addressing this very real and growing area of judicial intervention. Alaska and Illinois, states which have some of the most well-defined statutes, have effectively begun taking a “best interests” approach towards deciding custody of a pet. In Alaska, dogs and other animals can be named victims of orders of protection in domestic violence cases and convicted offenders can be mandated to pay costs associated with animals who are named victims of domestic violence.
Currently, New York State Bill S4248 passed through the State Senate and awaits approval on the Governor’s desk. This bill effectively would give pet owners and individuals who have cared for and nurtured a pet legal protection under the law during divorce proceedings.
This begs the next question of where will the law take this difficult to address subject? In New York State, children who are the subject of bitter custody disputes are appointed an Attorney, commonly known as an Attorney for the Child. These individuals are tasked with representing the child to advocate what they believe to be in their best interests. Will the Court begin using a modified approach to appoint lawyers to represent animals that are at the subject of bitter ownership disputes during a divorce? States such as Alaska have often employed the services of the Animal Legal Defense Fund which, during bitter disputes regarding animal custody, will prepare an amicus brief to send to the presiding judge in order to assist in representing what are the “best interests” of the animal. [iii]
With these new sweeping changes, Courts will now have to consider a myriad of factors before deciding an award of custody. These potential, but yet to be developed factors will likely include: (1) Who purchased the animal (2) Who has been shown to be the primary caregiver for the animal (3) Who pays for the expenses of the animal (4) Who takes the animal to necessary appointments and (5) Who has the established emotional connection with the subject animal.
This analysis this could potentially mirror the case law set forth in the Vermont State Supreme Court, where in Harment v. Baker, the Court elaborated further on the subject by stating: “In the case of pets, we hold that the family division may consider other factors not set out in the statute: the welfare of the animal and the emotional connection between the animal and each spouse. These factors underlie our animal welfare laws and our case law, which recognizes the value of the bond between the animal and its owner. See Morgan, 167 Vt. at 103, 702 A.2d at 633 (“Like most pets, [a dog’s] worth is not primarily financial, but emotional; its value derives from the animal’s relationship with its human companions.”). Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses” [iv]
Under this lens, were New York to adopt this similar line of reasoning, spouses going through a divorce who did not actually purchase the subject animal would have an opportunity to show why they should be awarded custody of that same animal. This type of balancing test would be very beneficial to those spouses who may not have purchased the subject animal but has been the one to take the animal to all appointments, cared for the animal as well as the one who developed a deep emotional connection with the animal. All these aforementioned factors could be considered in determining an award of animal custody during divorce proceedings.
Additionally, this could also provide a layer of protection against those who are the victims of domestic abuse by a more monied spouse who may be using the subject animal as a means of control.
Notably, the Courts are still reluctant to consider awarding these same types of protections to non-married individuals. The current Senate Bill protections only extend to those who are the subject of the divorce proceedings.
Ryan McCall is an Associate at Tully Rinckey PLLC and focuses his practice on family law. Ryan has a deep background in family and matrimonial law, where he has first chair experience with a specialty in grandparent’s rights cases and representing victims of domestic violence in Matrimonial, Custody and Family Offense cases. He can be reached at firstname.lastname@example.org or at (518) 281-7100.
[i] Travis v. Murray, 42 Misc. 3d 447
[ii] Corso v. Crawford 97 Misc 2d 530, 415 NYS2d (1979)
[iv] Hament v. Baker 2014 VT 39